NOT RECOMMENDED FOR PUBLICATION File Name: 21a0137n.06
Case Nos. 20-5035/5037
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, Mar 15, 2021 DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ON APPEAL FROM THE v. UNITED STATES DISTRICT COURT FOR THE WESTERN ISMAEL GONZALEZ; JOLIE JOHNSON, DISTRICT OF KENTUCKY Defendants-Appellants.
BEFORE: SUHRHEINRICH, CLAY, and DONALD, Circuit Judges.
CLAY, Circuit Judge. Defendants Ismael Gonzalez and Jolie Johnson appeal their
convictions for conspiracy to possess with intent to distribute heroin, methamphetamine, and
cocaine in violation of 21 U.S.C. § 841(a)(1), and conspiracy to launder monetary instruments in
violation of 18 U.S.C. § 1956. Specifically, Defendants appeal the district court’s decision to deny
their motions to suppress wiretap evidence. Additionally, Defendant Johnson appeals the district
court’s decision to deny her a Franks hearing, and Defendant Gonzalez appeals the district court’s
decision to deny his Fourth Amendment challenge of a searched vehicle. For the reasons set forth
below, we affirm.
I. BACKGROUND A. Factual History
On October 21, 2015, government agents seized drugs after raiding a home in Kentucky.
The owner of the home informed agents that he bought the drugs from a drug dealer named Yamil
Estrada. The following year, the United States Drug Enforcement Administration (DEA) and the Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
Louisville, Kentucky Police Department began an investigation into a large-scale drug conspiracy
occurring in the Louisville area. The investigation culminated in the convictions of several
defendants, including Yamil Estrada, Ishmael Gonzalez, and Jolie Johnson, who were arrested
after federal agents seized thirty-one kilograms of cocaine and six kilograms of heroin. The
convictions of Defendants Ishmael Gonzalez and Jolie Johnson were partly based on a series of
wiretaps used in connection with an investigation of Defendant Estrada. The legality of those
wiretaps is central to this appeal.
i. Estrada Wiretap
The investigation of Yamil Estrada in Louisville led agents to believe that Estrada was a
heroin, cocaine, and methamphetamine dealer who had sources in Mexico. As a result, on March
2, 2016, government agents sought a wiretap of Estrada’s phone to further their investigation of
him. In the wiretap application, the government expressed how traditional investigative techniques
typically employed by agents would not suffice in achieving the DEA’s investigative goals hence
the need for the wiretap. In an attached affidavit, DEA agent Brian Sanders stated that the
investigation had failed to conclusively identify all the co-conspirators, alternate sources of supply,
couriers, distributors, customers, or the full nature and scope of the criminal operation.
An undercover agent was able to pose as a courier and successfully purchase heroin from
Estrada but was unable to provide information about Estrada’s methods of purchasing and
transporting large shipments of heroin, cocaine, and methamphetamine. Additionally, agents had
no direct knowledge of how Estrada laundered the proceeds of his drug operation. Sanders was of
the view that agents would not be able to watch Estrada gather with other conspirators for meetings
and that surveillance would be insufficient to prove the purpose of the meetings. Toll records
showed Estrada conversing with a suspected supplier in Mexico, but those records did not show
2 Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
the substance of the conversations. Subsequently, the district court granted the wiretap. At this
point in the investigation, neither Ismael Gonzalez nor Jolie Johnson were known to be participants
in the alleged conspiracy.
After the district court approved the initial wiretap, Estrada began using a new phone. This
caused the government to apply for a second wiretap, which the district court granted. This
subsequent wiretap intercepted Estrada arranging drug deals with Ricardo Ruiz. Ruiz had been
the subject of former investigations since 2014 and DEA agents now believed that Ruiz and
Estrada were using the same supplier.
ii. Ruiz Wiretap
On April 6, 2016, the government sought a wiretap of Ruiz’s phone after phone calls
between Ruiz and Estrada showed Ruiz’s involvement in the drug operation. This wiretap
application, similar to the application for the Estrada wiretap, relied on Agent Brian Sanders’
affidavit. Shortly after the district court granted the wiretap, the government intercepted calls from
Ruiz that showed him calling Gonzalez with information about the drug conspiracy. In 2015, a
confidential source had mentioned that Gonzalez was involved in drug operations, but up until this
point, Gonzalez had never been under investigation. As agents listened to Ruiz’s phone calls, the
agents heard Ruiz requesting a pound of methamphetamine from Gonzalez. Gonzalez responded
that Ruiz could find the methamphetamine for $6500 per pound at a specific location. Hours later,
agents tracked Ruiz in route to purchase the drugs but lost him in traffic. Despite losing sight of
Ruiz, a wiretapped call intercepted Ruiz informing Gonzalez that he had found the drug package.
The next day, Gonzalez and Ruiz met in person and the agents tracked their whereabouts. Agents
discovered that Gonzalez drove a silver Chevrolet Impala. That information was then used to
petition a state court for geo-location data from Gonzalez’s phone.
3 Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
iii. Gonzalez Wiretap
On May 3, 2016, a little less than two weeks after the first intercepted call between Ruiz
and Gonzalez, agents petitioned the district court for another wiretap, but this time on Gonzalez’s
phone. They relied once again on a new affidavit from agent Brian Sanders in the wiretap
application. The wiretap was granted by the district court. Agents proceeded to wiretap
Gonzalez’s phone and overheard his conversations with Dante Watts and Jolie Johnson, who prior
to this point, had not been persons of interest in the investigation. In a particular phone call,
Gonzalez asked Jolie Johnson to accompany him in delivering methamphetamine to Dante Watts.
On July 1, 2016, an intercepted conversation showed Gonzalez making plans to receive a
shipment of drugs from a supplier, who would deliver the drugs on a truck. On July 2, 2016,
government agents followed the truck until it parked at a body shop. The agents then moved in
with search warrants and discovered cocaine, crack cocaine, and heroin in the vehicle. Agents
immediately arrested those present at the scene, and agents arrested Gonzalez later that day.
Several days later, agents arrested Jolie Johnson for her involvement.
B. Procedural History
On July 6, 2016, Defendants Jolie Johnson and Ismael Gonzalez were indicted for
conspiracy to possess with intent to distribute heroin, methamphetamine, and cocaine, alongside
other members of the conspiracy. A subsequent indictment with money laundering charges was
handed down on June 27, 2017. Johnson filed a motion to suppress in the district court, arguing
that the government’s wiretap of Gonzalez was illegal because the government had not exhausted
normal investigative methods before applying for the wiretap. Several co-defendants, including
Gonzalez, joined the motion to suppress. Gonzalez then moved to expand the motion to suppress
to include the Ruiz wiretap. After the government opposed the motion, Johnson claimed the
4 Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
wiretap had omitted a material fact that Gonzalez had already been the target in another
investigation. The district denied the motion to suppress without an evidentiary hearing on
October 27, 2017, ruling that the wiretaps satisfied the necessity doctrine and that Johnson lacked
standing to contest the Gonzalez wiretap.
A few days later, Johnson filed a motion for reconsideration, arguing that she in fact had
standing to contest the Gonzalez wiretap. The government did not contest that Johnson had
standing. The district court reversed its initial conclusion and ruled that Johnson had standing to
contest the wiretap. After this ruling, however, the court denied Johnson’s motion for
reconsideration and reasserted that the wiretap affidavits met the necessity requirement. The
district court additionally concluded that Johnson failed to satisfy her burden for an evidentiary
Franks hearing.
Separately, Gonzalez then filed a motion to suppress evidence seized from the truck that
led to his arrest. The magistrate judge presiding over the motion ruled that a further objection to
the search had to be made within fourteen days. Gonzalez did not file an objection, and when the
district court adopted the magistrate’s recommendation to deny the motion, the court noted that
Gonzalez had waived the issue. And even on the merits, the district court concluded that Gonzalez
did not have a privacy interest in the truck, and he therefore lacked standing to contest the search.
After the district court denied these motions, Defendants Gonzalez and Johnson pleaded
guilty to the conspiracy to possess with intent to distribute heroin, methamphetamine, and cocaine.
Johnson was sentenced to sixty-six months imprisonment. Gonzalez was sentenced to one hundred
eighty-four months imprisonment. As part of their plea agreements, both Defendants reserved the
right to appeal their motions to suppress. This appeal followed.
5 Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
II. DISCUSSION
A. The Necessity of the Wiretap
1. Standard of Review
After a district court denies a motion to suppress, we review “the factual findings for clear
error and the legal conclusions de novo.” United States v. Branch, 537 F.3d 582, 587 (6th Cir.
2008). A factual finding is “clearly erroneous when, although there may be evidence to support
it, the reviewing court, utilizing the entire evidence, is left with the definite and firm conviction
that a mistake has been committed.” United States v. Shank, 543 F.3d 309, 312 (6th Cir. 2008).
This Court accords “great deference” to the district court’s necessity determinations regarding
wiretap applications. United States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000) (quoting United
States v. Alfano, 838 F.2d 158, 162 (6th Cir. 1988)); see also United States v. Stewart, 306 F.3d
295, 304 (6th Cir. 2002) (issuing judge’s decision on necessity requirement afforded “considerable
discretion”). As a result, “the fact that a later trial judge or reviewing court may feel that a different
conclusion was appropriate does not require, nor even authorize, the suppression of evidence
gained through such a warrant.” Alfano, 838 F.2d at 162.
2. Relevant Legal Principles
Under the necessity doctrine, a wiretap application must include “a full and complete
statement as to whether or not other investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. §
2518(1)(c). The necessity requirement does “not foreclose electronic surveillance until every other
imaginable method of investigation has been unsuccessfully attempted, but [serves] simply to
inform the issuing judge of the difficulties involved in the use of conventional techniques.” United
States v. Landmesser, 553 F.2d 17, 20 (6th Cir. 1977). Instead, the doctrine protects against
wiretaps becoming an “initial step in [a] criminal investigation.” United States v. Rice, 478 F.3d
6 Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
704, 710 (6th Cir. 2007). The government must show they gave “serious consideration to the non-
wiretap techniques prior to applying for wiretap authority.” Id. “[A] purely conclusory affidavit
unrelated to the instant case and not showing any factual relations to the circumstances at hand
would be . . . inadequate compliance with the statute.” Id. (quoting Landmesser, 553 F.2d at 20).
However, the “prior experience of investigative officers is indeed relevant in determining whether
other investigative procedures are unlikely to succeed if tried.” Id.
3. The Wiretap Application Satisfied the Necessity Requirement
The district court correctly concluded that the wiretap application met the necessity
requirement. Agent Brian Sanders wrote affidavits that detailed the government’s investigative
steps, and why the wiretap was necessary. In the wiretap application, Agent Sanders detailed why
“conventional techniques” had failed prior to applying for the wiretap. Landmesser, 553 F.2d at
20. Defendant Gonzalez became a subject of the investigation after intercepted phone calls from
Ricardo Ruiz implicated Gonzalez’s involvement in the conspiracy. Those intercepted calls did
not provide information about Gonzalez’s drug source. Prior to applying for a wiretap of
Gonzalez’s phone, the agents attempted to use other avenues to procure more information. On
April 21, 2016, agents surveilled Gonzalez to track his whereabouts, but lost him in traffic after a
U-turn. As part of that surveillance, agents drove by a home where an informant said Gonzalez
lived, but they never found Gonzalez there. The informant only had limited information about
Gonzalez. Sanders believed that introducing a new informant was unlikely to yield further results
in the investigation, because in his experience as an agent, drug operations typically
compartmentalized members from each other to prevent anyone from knowing too much.
Agents took further steps to investigate, including subpoenaing Gonzalez’s phone toll
records to find out whom he was calling. But those records only provided phone numbers, rather
7 Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
than the substance of the conversations. Agents then geo-tagged Gonzalez’s phone to track his
whereabouts, but once again, it did not provide information regarding who he was meeting. Agent
Sanders also described in his affidavit why, in his professional experience, other techniques were
unlikely to be successful. A search warrant would be unsuccessful because the agents did not
know where Gonzalez stashed drugs or where he lived. Even if agents could find Gonzalez’s
home, agents did not want to alert other members of the conspiracy of the investigation. Other
techniques like placing a tracking device on Gonzalez’s car were considered dangerous because it
risked agents being discovered while placing the tracking device.
The investigative techniques agents documented in their application demonstrate how the
wiretaps were not used as the “initial step in the criminal investigation.” Rice, 478 F.3d at 710.
Rather, the application described how “other investigative techniques have been tried and failed
or why they reasonably appear[ed] to be unlikely to succeed or be too dangerous.” 18 U.S.C. §
2518(1)(c). Further, to have the wiretap approved, agents were not required to “prove that every
other conceivable method has been tried and failed . . . [or] exhausted.” Rice, 478 F.3d at 710. In
Defendants’ briefs, they assert that agents had sufficient evidence prior to the wiretap application
to render the application unnecessary. But the agents intended to understand the fullest extent of
the conspiracy and every member who was involved, and they were entitled to pursue further leads.
See United States v. Young, 847 F.3d 328, 345 (6th Cir. 2017) (rejecting defendant’s argument that
when agents obtain evidence prior to a wiretap application, the wiretap application should be
rendered unnecessary). Thus, given the “great deference” provided to the district court after a
wiretap is approved, our review shows sufficient necessity for the wiretap application. Corrado,
227 F.3d at 539. We conclude that the wiretap application was correctly approved after the
government demonstrated sufficient necessity to further the objectives of their investigation.
8 Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
B. Defendant Johnson’s Petition for a Franks Hearing
1. Relevant Legal Principles
We review a “district court’s denial of a Franks hearing under the same standard as for the
denial of a motion to suppress: the district court’s factual findings are reviewed for clear error and
its conclusions of law are reviewed de novo.” United States v. Graham, 275 F.3d 490, 505 (6th
Cir. 2001). The Fourth Amendment provides that where a defendant can make a substantial
showing that an affiant in an affidavit for a search warrant lied, the defendant is entitled to a hearing
to discard the fruits of the warrant. See Franks v. Delaware, 438 U.S. 154 (1978). To qualify for
a Franks hearing, a defendant must show that “a false statement knowingly and intentionally, or
with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and the
allegedly false statement is necessary to the finding of probable cause.” Id. at 155-56. “[N]o
hearing is required” when the “material that is subject of the alleged falsity or reckless disregard
is set to one side [and] there remains sufficient content in the warrant affidavit to support a finding
of probable cause.” Id. at 171-72. Material omissions made in an affidavit may qualify a defendant
for a Franks hearing, but this Court has “recognized that an affidavit which omits potentially
exculpatory information is less likely to present a question of impermissible official conduct than
one which affirmatively includes false information.” Graham, 275 F.3d at 506. A defendant may
be granted a Franks hearing for a material omission “only if: (1) the defendant makes a substantial
preliminary showing that the affiant engaged in deliberate falsehood or reckless disregard for the
truth in omitting information from the affidavit” in addition to “(2) a finding [that] probable cause
would not be supported by the affidavit if the omitted material were considered to be a part of it.”
United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008).
9 Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
2. Defendant Johnson Was Not Entitled to a Franks Hearing
The district court properly denied Defendant Jolie Johnson an evidentiary Franks hearing.
Johnson argues that Agent Brian Sanders made a material omission in his wiretap affidavit
detailing the investigation of Gonzalez. When federal agents filed a wiretap application in the
Western District of Kentucky, Gonzalez had already been indicted after a separate investigation in
the Eastern District of Kentucky. The wiretap application stated that agents were working on an
investigation in the Eastern District of Kentucky alongside the agents in the Western District but
did not reference the Gonzalez indictment specifically. Because agents did not include this
information about the indictment, Defendant Jolie Johnson argues that the omission was material
enough to warrant a Franks hearing. Further, Johnson argues it had direct implications on the
necessity of, and probable cause for, the wiretap. Despite Johnson’s assertions, the record shows
that Gonzalez was charged in the Eastern District for crimes he committed years earlier than those
in the current investigation by agents in the Western District. At the time of the wiretap
application, agents believed new information would further the Western District investigation
because they were investigating Gonzalez for crimes separate from those in the Eastern District.
Before the wiretap application, agents were unable to discover the details necessary to
uncover the full extent of the drug conspiracy. Indeed, agents in the Western District knew very
little about Gonzalez’s whereabouts and involvement in the conspiracy, even after their
coordination with the Eastern District. But even with such little information, “[t]here remain[ed]
sufficient content in the warrant affidavit to support a finding of probable cause.” Franks, 438
U.S. at 171-72. Upon review, we find the omission to be minor in nature rather than a “deliberate
falsehood or reckless disregard for the truth.” Fowler, 535 F.3d at 415. Accordingly, since agents
did not intentionally mislead the court, and sufficient probable cause remained in the wiretap
10 Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
application, Defendant Johnson was not entitled to a Franks hearing. See Franks, 438 U.S. at 171-
72.
C. Standing in Connection with the Search of the Seized Vehicle
We review “the trial judge’s findings of fact regarding the defendants’ standing to
challenge alleged Fourth Amendment violations . . . for clear error, while the legal determination
of standing is reviewed de novo.” United States v. Mastromatteo, 538 F.3d 535, 544 (6th Cir.
2008). Under the Fourth Amendment, “a defendant has standing to challenge the admission of
evidence only if the defendant’s own constitutional rights have been violated.” Id. That
determination centers largely on whether the “defendant can establish ‘a legitimate expectation’
of privacy in the area searched or the items seized.” United States v. Davis, 430 F.3d 345, 359–
60 (6th Cir. 2005) (quoting Minnesota v. Carter, 525 U.S. 83, 91 (1998)). A defendant has the
“burden of demonstrating that he had a legitimate expectation of privacy in the place that was
searched.” United States v. Talley, 275 F.3d 560, 563 (6th Cir. 2001). The expectation of privacy
is shown when a defendant has a “possessory [or] property interest” in the relevant item searched
or seized. Davis, 430 F.3d at 360. We will also review other factors to determine whether a
defendant had an expectation of privacy, including:
“[O]wnership, possession, and/or control; historical use of the property searched or the things seized; ability to regulate access; the totality of the surrounding circumstances; the existence or nonexistence of a subjective anticipation of privacy, and the objective reasonableness of such an expectancy under the facts of a given case.”
United States v. Smith, 263 F.3d 571, 584 (6th Cir. 2001).
2. Defendant Gonzalez Lacks Standing to Contest the Search of the Vehicle
When federal agents searched the truck on July 2, 2016, a co-defendant in the conspiracy,
Oscar Argueta, was driving the vehicle where federal agents found cocaine and heroin inside.
11 Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
Gonzalez was not a passenger in the vehicle, and he was arrested later that day in a different
location. On appeal, Gonzalez argues an intercepted call made on July 1, 2016 demonstrated his
ownership of the truck. In that call, a man says, “Once I turn [the truck] in[,] [there will be a]
guarantee that the title is clean from you.” (ECF No. 281 at PageID # 1775.) Gonzalez then replied,
“[w]hat’s mine is mine. It’s mine. It’s under my name . . . the trailer and boat have a title and the
truck.” (Id.)
As an initial matter, Defendant Gonzalez lacks standing to contest the search of the truck
because he waived his right to appeal the district court’s ruling on this issue. At first, Gonzalez
filed a motion to suppress the evidence found in the truck, but after his initial motion, the presiding
magistrate judge ordered the parties to file a further objection within a fourteen-day period.
Gonzalez never filed that objection, and the district court subsequently considered his lack of
objection to be a waiver of the issue. In light of this ruling, Gonzalez waived the issue on appeal.
See United States. v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding a defendant’s failure to
object to a magistrate judge’s report constitutes a waiver of his right to appeal the admission of
evidence).
Further, even on the merits, Gonzalez carried the “burden of demonstrating that he had a
legitimate expectation of privacy in the place that was searched,” but he failed to provide sufficient
proof to satisfy that requirement. Talley, 275 F.3d at 563. Gonzalez has offered no other evidence
to establish his ownership of the truck nor was he able to clarify or corroborate whether the truck
discussed in the phone call is the same as the one co-defendant Argueta was driving the day agents
searched it. A records search demonstrated that the truck was registered to Argueta, and
Gonzalez’s name was not on the title. Since another person held physical possession and legal
title to the truck, Gonzalez’s “own constitutional rights [were not] violated.” Mastromatteo,
12 Case Nos. 20-5035/5037, United States v. Gonzalez, et al.
538 F.3d at 544. Thus, because Gonzalez is unable to show “ownership, possession, and/or
control” over the vehicle in question, we find that he did not have standing to contest the search of
the truck. Smith, 263 F.3d at 584.
III. CONCLUSION
For the reasons set forth above, we affirm.